Alka Devi Bhuwalka vs Anit Chowdhury & Ors

Subhash Chandra, Member

This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails order dated 02.11.2018 of the State Consumer Dispute Redressal Commission, West Bengal, Kolkata (in short, ‘State Commission’) in Appeal No. A/344/2017 of 2017 filed against order of the District Consumer Disputes Redressal Forum, Kolkata Unit III (in short, ‘District Forum’) in consumer complaint no. 212 of 2016 dated 22.02.2017.

A cross revision petition no.3317 of 2018 has also been filed by Alka Devi Bhawalka against the same order of the State Commission, Kolkata. This order will also dispose of this revision petition as it emanates from the same impugned order.

In brief, the facts of the case are that respondent no.1 had filed consumer complaint no. CC 212 of 2016 before the District Forum claiming that respondent no.2 had sold a car parking space measuring approximately 120 sq ft on the ground floor of the building Lokenath View, 100 Banamali Naskar Road, Kolkata for a consideration of Rs.3,25,000/- as per a sale deed dated 16.01.2015 registered with the ADSR, Behala. It is admitted by respondent no 1 that this document mentions the sale consideration as Rs.2,00,000/- only. Respondent no 1 submits that respondent no 2 had assured him that the said car parking would be enclosed by a brick wall duly plastered with a shutter gate in the front. However, this property was not handed over and the construction as promised was not done by respondent no 2 despite several efforts by respondent no 1, including a legal notice dated 25.08.2015. Thereafter, respondent no 1 approached the District Forum praying for direction to respondent no 2 to complete the construction and to deliver vacant possession to him along with compensation of Rs.5,00,000/- for the inordinate delay. This complaint was contested by respondent 2. Petitioners 1 and 2 herein also contested the complaint on the ground that the space stated to have been sold was earmarked as common parking space as per the building plan sanctioned by the Kolkata Municipal Corporation (KMC) and could not be sold or enclosed as claimed.

The District Forum dismissed the complaint and ordered as under:

On perusal of the prayer portion, it appears that the first prayer of the Complainant is a direction upon the OP No to complete the construction of the said car parking space by erecting brick built walls on its three sides together with fitting a shutter gate. Further, on perusal of the registered deed, it appears that registration was made of a car parking space which is mentioned in the schedule B of the copy of the deed which makes it clear that one cemented floor covered car parking space having an area of 120 sq.ft. in the premises No.100 was sold that means Complainant purchased a covered car parking space and hence there does not arise any action. Subsequently, that Complainant will rebut the facts mentioned in the conveyance deed which was made before the Sub-Registrar and the deed was registered.

This is settled principle that the contents of the deed can be challenged before a Civil Court and not before this Forum.

Accordingly, the first prayer cannot be allowed.

The second prayer of the Complainant is for delivery of vacant possession of the said car parking space. This prayer also appears to be inconsistent as because when the deed of conveyance was made, the handing over of the possession of the car parking space was also made. It cannot be presumed that Complainant made payment without getting possession of the car parking space.

As such, we are of the view that this prayer of the Complainant cannot be allowed.

Finally, Complainant has prayed for compensation of Rs 5,00,000/-.

On perusal of the affidavit-in-chief, questionnaire and reply of the respective parties, it appears that there is no ground that compensation can be allowed. It is because the latches are on the part of the Complainant who purchased car parking space in a building where he did not purchase the flat. This in itself reveals that the complainant and the Ops have some otherwise reasons where both were compelled to make this conveyance deed.

In the aforesaid facts and circumstances, we are of the view that there is no ground to allow these prayers.

Hence CC 212/2016 and the same is considered and dismissed on contest.

This order was appealed against by respondent no.1 / complainant in the State Commission. The State Commission has held that:

The Complainant /Appellant herein claimed that he purchased one car parking space having an area of 120 sq ft more or less on the North-West side of the ground floor of the building ‘Lokenath View’. In support of his contention he produced the copy of the Deed of conveyance dated 16.01.2015 which was registered by ADSR, Behala, South 24 Parganas. The map attached to the deed, which is at page 40 of the file, as well as the averments of the Schedule B which is at page 51 of the file clearly manifested that the complainant purchased –

“one cemented floor covered car parking space having an area of 120 sq ft more or less on the north west side of the ground floor of the said building lying and situates at KMC premises no.0100 Banamali Naskar Road, ward no. 132, Kolkata 700 060 under Police Station Parnashree in the district of South 24 Parganas”.

This Schedule B does not create any confusion so far as the desire of the vendor to transfer the covered car parking space measuring 120 sq ft in favour of the purchaser/ appellant herein and the documents showing acceptance of part of the consideration by a receipt being annexure A of the Deed within a week from the date of such payment of earnest money on acceptance of the balance consideration does not create any confusion so far as the title of the complainant in respect of the car parking space, as the complainant is claiming herein. The other opposite parties/ respondents did not have any right to interfere in a situation like this and taking into consideration the facts and circumstances of the case we are of the view that the learned trial forum was not justified in dismissing the complaint case.

Hence, we allow the appeal, set aside the judgment impugned and direct the opposite party no.1/ respondent no.1 to hand over possession of the car parking space after constructing in three side walls, fitting the shutter in front of it and such process shall be completed within a period of 60 days from the date of this order. In default, the complainant is given liberty to take steps according to law. Parties to bear their respective costs of Appeal.

The petitioner is before us with the prayer to set aside the order of the State Commission in Appeal No. 344 of 2017 and confirm the order of the District Forum.

We have heard the submissions of the learned counsels for the respondents and perused the records carefully. As none appeared on behalf of the petitioner, he was proceeded ex parte vide order dated 25.10.2022.

None appeared on behalf of the Secretary, Lokenath View Flat Owners’ Forum also on the date of final arguments, i.e., on 25.10.2022. We have perused the material on record carefully including the written submissions filed by them.

On the other hand, it was argued by the learned counsel for the respondents that respondent no. 2 had accepted the sale consideration for the car parking space and was therefore obliged to hand over the same along with the construction of walls on three sides and a shutter on the fourth side. It was also contended that the possession had not been handed over by respondent no.2 to him which had now been ordered by the State Commission. Accordingly it was prayed for dismissing the revision petition.

The Consumer Protection Act, 1986 is intended to provide better protection of the interests of consumers. A ‘consumer’ as per the Act is any person who, –

“Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person why buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose”;

A complaint under the Act is required to establish ‘deficiency’ as defined under section 2 (i) (g) and/or ‘unfair trade practice’ as per section 2 (i) (r). However, from the foregoing, it is apparent that there is no agreement between respondent no.1 and respondent no.2 establishing a relationship of a ‘consumer’ and ‘service provider’. No document has been brought on record by the respondents to establish any agreement for the sale and construction of any enclosed car parking space in the premises of Lokenath View, 100 Banamali Naskar Road, Kolkata to establish a commitment for a service to be provided in lieu of a consideration received. There is, admittedly, only a registered sale deed for a sum of Rs.2,00,000/-. Enforcement of a conveyance deed is not within the jurisdiction of this Commission. It has been rightly held by the District Forum in its order dated 22.02.2017 that the contents of the sale deed lie within the purview of a Civil Court and need to be challenged there. The assertion of the petitioners is that the respondent is not a resident in Lokenath View Apartments. Respondent no 1 has not brought any document on record to substantiate his claim to the parking area as a resident of the apartments at “Lokenath View”. It is also evident from the record that the building called “Lokenath View” is a group housing building built as per a building plan sanctioned and approved by the Kolkata Municipal Corporation, Kolkata comprising of ground and 3 floors including common areas and passages for residents. There is no earmarking of any space on the ground floor as an enclosed car parking area. The present petition filed by the Secretary of the Association of Residents in this complex and another resident is therefore a legitimate petition in as much as it seeks to safeguard the common interests of the group of residents. The State Commission’s non suiting of the petitioners is therefore perverse. The basis of arriving at the conclusion to allow the appeal has not been spelt out in the order of the State Forum and it is liable to be set aside on this ground itself. The order of the District Forum on the other hand is reasoned and detailed and sets out grounds for arriving at its findings. We are therefore inclined to uphold the same.

For the reasons stated above, it is evident that the impugned order is perverse and illegal and is liable to be set aside. We accordingly find merit in the revision petition and allow the same. The impugned order of the State Commission is hereby set aside and the order of the District Forum affirmed.

This order also disposes of revision petition no.3317 of 2018 filed by Ms Alka Devi Bhuwalka impugning the same order of the State Commission in appeal no.344 of 2017 dated 02.11.2018.